STATE OF NEW JERSEY v. AHMED K. ELSAID

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6443-04T46443-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

AHMED K. ELSAID,

Defendant-Appellant.

______________________________

 

Submitted September 10, 2007 - Decided September 20, 2007

Before Judges Gilroy and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 03-12-2247.

Yvonne Smith Segars, Public Defender, attorney for appellant (Prosper A. Bellizia, Designated Counsel, on the brief).

Anne Milgram, Attorney General, attorney for respondent (Dana Citron, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Following his arrest on June 23, 2003, defendant was charged under a two-count indictment with third-degree possession of a controlled dangerous substance (CDS) (heroin), N.J.S.A. 2C:35-10a(1) (Count One), and fourth-degree uttering of a false document, N.J.S.A. 2C:21-4a (Count Two). Defendant was also charged under a complaint-warrant with the disorderly persons offense of possession of drug paraphernalia, N.J.S.A. 2C:36-2. On June 1, 2004, defendant appeared at a pre-trial conference, at which time the judge fixed a trial date of September 7, 2004, and provided defendant with a Hudson warning that if he failed to appear on that date or any subsequent date, he could lose his bail, the trial could proceed in his absence, and a bench warrant could be issued for his arrest. The Hudson warning was memorialized in a trial memorandum signed by defendant and his attorney.

After defendant failed to appear on the scheduled trial date, a bench warrant was issued for his arrest, and the trial was adjourned to September 20, 2004. Defendant failed to appear on September 20, 2004, and the trial was continued to the following day. On September 21, 2004, defendant again failed to appear, and defense counsel moved for a continuance. The motion was denied. After the trial court denied defendant's motion to suppress evidence, defendant was tried to a jury in absentia and convicted on Count Two, with the jury not reaching a verdict on Count One. Subsequent to the trial, defendant was arrested on the bench warrant. On April 22, 2005, the judge found defendant guilty of the disorderly persons offense and sentenced defendant to an eighteen-month term of imprisonment on Count Two and a concurrent 180-day term of imprisonment on the disorderly persons conviction. Defendant was also ordered to pay certain fines and penalties on the convictions. Following sentencing, the State dismissed Count One. Defendant appeals. We affirm the convictions and remand to the Law Division to amend the judgment of conviction.

Because defendant does not contend that the verdicts were against the weight of the evidence, we need only state the core facts to place the appeal in context. We will describe and discuss other facts as necessary in addressing the issues.

Following a complaint from a private citizen of a motor vehicle being operated in a commercial parking lot by someone the citizen suspected was under the influence "of one thing or another," Patrolman Michael Capone of the Hackensack Police Department responded to the scene. Capone observed defendant operating the described motor vehicle in the parking lot. Upon stopping the vehicle, Capone requested defendant to produce his driving credentials. Defendant produced a Puerto Rico driver's license, with the name "Elmer Rivera," containing a photograph of an individual who did not resemble defendant. In searching for additional identification, defendant opened his glove compartment, and Capone noticed a glass pipe used for smoking CDS.

Capone requested defendant to exit the vehicle, placed defendant under arrest, and gave defendant his Miranda warnings. After defendant was placed in the custody of a second officer, Capone searched the glove compartment while defendant's wife sat in the front passenger seat. Capone discovered a cigarette box containing a second glass pipe and two bags of heroin. At police headquarters, defendant identified himself to Capone as L. Nino Elsaid, not only providing Capone with a different social security number, but also with a different date of birth than the date on the driver's license originally presented to him. Following a fingerprint check, defendant's true identity was ascertained.

On appeal, defendant argues:

POINT I.

UNDER ARTICLE I, PARAGRAPH 7 OF THE NEW JERSEY CONSTITUTION THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO SUPPRESS.

POINT II.

THE COURT'S DENIAL OF THE DEFENDANT'S MOTION FOR A BENCH WARRANT AND DECISION TO TRY HIM IN ABSENTIA DENIED THE DEFENDANT A FAIR TRIAL.

POINT III.

THE IMPOSITION OF THE MAXIMUM SENTENCE ON BOTH THE INDICTMENT AND THE DISORDERLY PERSONS OFFENSE VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS TO TRIAL BY JURY AND DUE PROCESS OF LAW.

In Point I, defendant does not challenge the validity of the motor vehicle stop or the seizure of the first glass pipe that Patrolman Capone observed in plain view. Defendant challenges the warrantless search of the glove compartment and the seizure of the cigarette box which contained a second glass pipe and two small bags of heroin.

In denying the motion to suppress evidence, the judge determined that the warrantless search of the glove compartment was lawful as incident to defendant's arrest. The State concedes that the incident to an arrest exception to the warrant requirement is not applicable, State v. Eckel, 185 N.J. 523 (2005). However, the State argues, as it did at the suppression hearing, that the search of defendant's glove compartment was valid under the automobile exception. We agree.

The Fourth Amendment to the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution protect individuals against unreasonable searches and seizures. State v. Johnson, 171 N.J. 192, 205 (2002). "[O]ur constitutional jurisprudence expresses a preference that [police officers] secure warrants issued by neutral and detached magistrates before executing a search . . . ." State v. Frankel, 179 N.J. 586, 597-98, cert. denied, 543 U.S. 876, 125 S. Ct. 108, 160 L. Ed. 2d 128 (2004). A warrantless search is presumed to be unlawful unless it falls within one of the recognized exceptions to the warrant requirement. State v. DiLoreto, 180 N.J. 264, 275-77 (2004). "Those exceptions are based on the recognition that under certain exigent circumstances a search without a warrant is both reasonable and necessary." Frankel, supra, 179 N.J. at 598. One exception to the warrant requirement is the automobile exception, which "applies only in cases in which probable cause and exigent circumstances are evident, making it impracticable for the police to obtain a warrant." State v. Cooke, 163 N.J. 657, 671 (2000).

Probable cause and exigent circumstances existed for justifying the warrantless search. Once Patrolman Capone observed the first glass pipe inside the glove compartment as defendant sought additional identification, probable cause existed to search the glove compartment for contraband. State v. Judge, 275 N.J. Super. 194, 201 (App. Div. 1994).

We are also satisfied that the circumstances surrounding the incident support the finding of exigent circumstances. Exigent circumstances may exist if "unanticipated circumstances that give rise to probable cause occur swiftly." Cooke, supra, 163 N.J. at 672. They may also exist if an element of surprise has been lost, a vehicle contains contraband, a confederate is waiting to move the evidence, or where the police would otherwise had needed to call in reinforcements to guard the motor vehicle in order to obtain a search warrant. State v. Colvin, 123 N.J. 428, 434-35 (1991). Here, Patrolman Capone had probable cause to believe that defendant had drugs or drug paraphernalia in the motor vehicle. There existed a need to search the vehicle swiftly because defendant's wife could have removed either the car or the contraband. See Cooke, supra, 163 N.J. at 674-75. The police were not required to post a guard for the car while applying for a warrant to search the vehicle at the scene. We are satisfied the search met the automobile exception to the warrant requirement. State v. Irelan, 375 N.J. Super. 100, 115-20 (App. Div. 2005).

Moreover, even if the second glass pipe was unlawfully seized, any error in the denial of the motion to suppress was harmless. Defendant could have been convicted on the disorderly persons offense of possession of drug paraphernalia regardless of the admission of the second glass pipe. The admission of the first glass pipe alone was sufficient to sustain the conviction. The first glass pipe was seized after Patrolman Capone had observed it in plain view when defendant opened the glove compartment, and the seizure was not challenged on appeal.

Defendant argues next that he should not have been tried in absentia, contending that although he had been provided sufficient notice of the original trial date that "the record is deficient to prove sufficient notice of the actual trial date of September 21, [2005]." We determine the argument meritless. Defendant was provided proper notice of the scheduled trial date and warned that if he failed to appear on that date or any subsequent date he could be tried in his absence. R. 3:16(b); Hudson, supra, 119 N.J. at 184. Defendant failed to appear on the original trial date and the adjourned trial date. After the trial judge continued the matter for an extra day, defendant again failed to appear. Because no further Hudson warning was required after defendant failed to appear on the original trial date, State v. Finklea, 147 N.J. 211, 213 (1996), we discern no abuse of discretion in the trial judge proceeding to try defendant in absentia. Ibid. Defendant's silence, both at the time of sentencing and on appeal, as to why he failed to appear for trial speaks for itself.

We next address defendant's challenge to the sentences. On the conviction on Count Two, a fourth-degree crime, defendant was sentenced to an eighteen-month term of imprisonment; and on the disorderly persons offense conviction, defendant was sentenced to a concurrent 180-day term of imprisonment. A review of the judgment of conviction discloses that defendant received 170 days jail credit, R. 3:21-8. Defendant challenges both sentences, contending that they were excessive because the trial judge only found a single aggravating sentencing factor, N.J.S.A. 2C:44-1a(3) (risk that defendant would commit another offense) and that the sentences violated his Sixth Amendment right to have a jury determine the aggravating sentencing factors, citing Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). The State concedes that the sentence imposed on Count Two should be vacated and the matter remanded for re-sentencing on that count only, State v. Natale (Natale II), 184 N.J. 458, 466 (2005).

Although we agree with defendant's argument that the sentence imposed on Count Two implicates his Sixth Amendment right to a jury trial, Natale II, we determine that no action is required as to either sentence. Defendant was sentenced on April 22, 2005, to an aggregate term of eighteen months of imprisonment. Accordingly, the defendant would have completed serving the full term of his sentences no later than October 22, 2006, and probably sooner because of the credit he received at sentencing for time served in jail between the time of arrest and imposition of sentence, R. 3:21-8. Accordingly, even if we were to vacate the sentences, our decision would be meaningless. The issue is moot, defendant having completed serving his full sentences. "Issues that have been rendered moot by subsequent developments render legal issues abstract and [] outside the proper realm of courts." In re Park Madison Site, 372 N.J. Super. 544, 550 (App. Div. 2004), certif. denied, 182 N.J. 630 (2005).

 
Affirmed; remanded to the trial court to amend the judgment of conviction, deleting the $30 Law Enforcement Officers Training and Equipment Fund penalty imposed on the disorderly persons offense.

State v. Hudson, 119 N.J. 165 (1990).

Included among the fines and penalties that defendant was ordered to pay on both the indictable and disorderly persons offense convictions was a $30 Law Enforcement Officers Training and Equipment Fund penalty. Because that penalty only applies to crimes, not disorderly persons offenses, N.J.S.A. 2C:43-3.3, we vacate the $30 penalty on the disorderly persons offense conviction and direct the trial court to amend the judgment of conviction accordingly.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

The jury never reached a verdict on Count One, and that charge was later dismissed at sentencing. Defendant's conviction of uttering a false document is unrelated to the seizure of the CDS and drug paraphernalia. Accordingly, defendant's challenge to the denial of the motion to suppress evidence can only pertain to defendant's disorderly persons offense conviction. Procedurally, we note that defendant did not indicate in his notice of appeal that he was appealing from the disorderly persons offense conviction or the sentence imposed thereon. Therefore, defendant's argument, pertaining to the disorderly persons offense conviction and sentence, is not properly before us for review. "[I]t is clear that it is only the judgments or orders or parts thereof designated in the notice of appeal which are subject to the appeal process and review." Pressler, Current N.J. Court Rules, comment 6.1 on R. 2:5-1(f)1 (2008); See Fusco v. Bd. of Educ. of Newark, 349 N.J. Super. 455, 461-62 (App. Div.), certif. denied, 174 N.J. 544 (2002). However, because the State has addressed the arguments, we choose to consider the issues on the merits.

(continued)

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A-6443-04T4

September 20, 2007